Seyfarth synopsis:  A Florida Judge Holds that SeaWorld’s website is not a place of public accommodation covered by Title III of the ADA but the decision has its limits.

Defendants fighting website accessibility lawsuits in the past several years have not had a great deal of success, so the recent decision by Florida federal Magistrate Judge Carol Mirando holding that SeaWorld’s website is not a place of public accommodation was a small bright spot — albeit one with limitations.

The disabled pro se plaintiff in this case sued SeaWorld under Title III of the ADA because the business allegedly did not provide him with an electric wheelchair or allow his two service dogs entry.  The court held that the plaintiff did not have standing to bring these claims because there was no threat of imminent harm.  The plaintiff also alleged that SeaWorld’s website was not accessible to individuals with disabilities, although it is not clear how his disability impacted his use of the website.  The court rejected this claim, holding:

“Neither Busch Gardens’ nor SeaWorld’s online website is a physical or public accommodation under the ADA.  The Internet is a unique medium — known to its users as ‘cyberspace’ — located in no particular geographical location but available to anyone, anywhere in the world, with access to the internet.  Hence, Plaintiff is unable to demonstrate that either Busch Gardens’ or SeaWorld’s online website prevents his access to a specific, physical, concrete space such as a particular airline ticket counter or travel agency.  As a result, Plaintiff may not plead a claim based on accessibility of an online website under Title III of the ADA.”

In so holding, the court cited to Access Now, Inc. v. Southwest Airlines, Co., 227 F.Supp.2d 1312 (S.D.Fl. 2002), where another Florida district court had dismissed an ADA Title III claim against Southwest because the Southwest website was neither a public accommodation nor was a means of accessing a physical place of public accommodation.  The court in the Southwest Airlines case relied on the Eleventh Circuit holding in Rendon v. Valleycrest Prods., 294 F.3d 117 (11th Cir. 2002). There, the appellate court held that a plaintiff alleging that the telephone screening process for the Who Wants to be a Millionaire gameshow had stated a claim under Title III of the ADA — despite the fact that the telephone was not a physical place — because the screening process was a means of accessing the show which took place in a physical location.

The SeaWorld decision is not surprising in light of the Rendon decision and this pro se plaintiff’s failure to plead that the inaccessibility of the website prevented him from accessing a physical place of public accommodation.  The outcome could have been different if the case had been brought by a different plaintiff who was represented by competent counsel.

Moreover, as we have noted, other judicial circuits such as the First Circuit do not require that a business have a nexus to a physical location to be a place of public accommodation.  Thus, plaintiffs bringing lawsuits about websites that do not have a nexus to a physical place will likely choose those circuits for their lawsuits.  The Department of Justice (“DOJ”) has also made clear its position that a website need not have any connection to a physical place to be covered by the ADA.  Thus, businesses that choose to argue in defense of a lawsuit that their websites are not public accommodations may invite an intervention by the DOJ as we blogged about last month.

In short, many considerations should go into a business’ decision as to whether it should fight or resolve a website accessibility lawsuit.

Edited by Kristina Launey.

Webinar_Flat_Icon_Set_REZERVAPlease join Seyfarth Shaw’s ADA Title III team members Minh Vu and Kristina Launey, along with SSB Bart CEO Tim Springer, for a preview of the Defending Digital Accessibility Lawsuits presentation they’ll give at this year’s California State University Northridge Annual International Technology and Persons with Disabilities Conference.  This 45-minute webinar will provide a brief overview of applicable laws and recent settlements, and practical tips for proactive preparation and avoidance, or remedial defense, against digital accessibility complaints and litigation.

Click here to register for the webinar.

On January 22, Seyfarth Shaw’s class action experts are presenting a webinar to discuss highlights from Seyfarth’s 11th Annual Workplace Class Action Litigation Report.  While the Report primarily covers class actions in the employment context, many of the rules, strategies, and tactics are equally applicable and employed in ADA Title III class litigation, as demonstrated by the Report’s inclusion of some ADA Title III cases. 

The Report and webinar should prove educational to anyone faced with class or complex litigation. To find out more about the webinar and to register, click here.